The following is from guest contributor Jon C. Hopwood.
This article was originally published in 2009 on Yahoo Voice and is reprinted here by permission of the author.
Summary: Donald Eugene Gates, who was convicted of the 1982 rape-murder of a Caucasian college coed, was released on the basis of new DNA evidence.
Donald Eugene Gates, a 58 year-old African American wrongfully convicted in 1982 of the rape-murder of Caucasian college coed Catherine Schilling, was freed by the D.C. Superior Court after a DNA test revealed that he could not be the culprit.
The prosecution of Gates was heavily dependent on the testimony of F.B.I. Crime Lab analyst Michael P. Malone, who testified that two hairs found on Schilling’s body came from an African American male. Schilling, who was a student at Georgetown University, was murdered in Rock Creek Park in Washington, D.C. in 1981.
Gates, who has always maintained that he was innocent of the crime, had been imprisoned for nearly 30 years until ordered release by Senior Judge Fred B. Ugast. Ugast had overseen his trial back in 1982.
In 1988, Ugast had ordered a DNA test of the evidence used to convict Gates, but DNA testing a generation ago was primitive. The more sophisticated DNA testing of the 21st Century proved that Gates was right: He was innocent.
Crime Lab Corruption
Since the Gates trial, former F.B.I. agent Michael Malone has become notorious as an unreliable and unethical expert witness who likely committed perjury in hundreds of trials. Dr. Frederic Whitehurst of the National Whistleblower Center’s Forensic Justice Project first revealed the widespread corruption at the F.B.I. Crime Lab back in 1993, when he, too, was an F.B.I. employee.
Whitehurst charged that Malone and other F.B.I. Crime Lab employees were not only manufacturing evidence to support prosecutors and law enforcement agencies, but were engaged in providing perjured testimony at trials using their evidence. Malone had a profitable sideline in providing expert testimony favorable to the prosecution.
A 1997 report from the Department of Justice’s Office of the Inspector General validated Whitehurst’s charges, and cited Malone as one of 14 F.B.I. Crime Lab that conducted inaccurate tests and made false reports. Whitehurst had revealed that Malone had perjured himself and falsified evidence when testifying during the impeachment proceedings against federal judge Alcee Hastings (now a U.S. Representative from Florida’s 23rd Congressional District).
Facing Bureau discipline for his conduct in the Hastings case, Malone was allowed to retire. The Bureau apparently did not take any adverse action against him.
In contrast to the Bureau’s treatment of Malone, Whitehurst — the man who blew the whistle on Crime Lab corruption and illegal activities by Lab employees — was harassed by the F.B.I. and the Department of Justice. Whitehurst’s wife, who also worked for the Bureau, also was a victim of the F.B.I.’s smear campaign against her husband.
In a classic case of the king killing the messenger bearing unwanted news, Dr. Whitehurst was driven from the F.B.I. After years of litigation, the government settled lawsuits targeting its unlawful conduct against Whitehurst for $1.46 million.
Outrageous
Speaking from the bench, Judge Ugast termed the prosecution’s conduct in the Gates trial as “outrageous.” He demanded to know why it took the Office of the U.S. Attorney so long to investigate the use of phony evidence in the Gates case, in light of the knowledge that former Crime Lab analyst Malone has been revealed to be a serial perjurer who fabricated evidence.
Assistant U.S. Attorney Joan Draper defended the government by claiming that the Office of the U.S. Attorney had begun looking into the situation “as soon as it was brought to our attention.”
Ugast ordered that all convictions in the District of Columbia that were obtained with testimony from Malone be reviewed.
Righting a Wrong
“We are trying to right a wrong,” Ugast explained when he ordered that Gates be freed. Ugast’s order gives Gates his freedom, but does not exonerate him. The U.S. Attorney may decide to try him again, though in the light of the new DNA evidence, that seems unlikely.
Defending their conduct in the Gates case, federal prosecutors claimed that their case was based on more than Malone’s hair testimony. The government’s case included the use of a jailhouse informant, who was paid for his testimony that Gates has confessed that he had raped and murdered Schilling.
Jail-house confessions are among the most notorious, underhanded methods by which prosecutors seek to gain a conviction. Dr. Sam Sheppard, whose case provided the basis for the TV series and movie The Fugitive, was wrongfully convicted of murdering his wife in the Cleveland suburb of Bay Village, Ohio in 1954. The perpetrator of the murder was left-handed while the 30 year-old Sheppard, a highly respected osteopathic physician, was right-handed.
Sheppard claimed that his wife had been murdered by an intruder, whom he had tried to subdue but who had beaten him. The doctor had suffered injuries on the night of his wife’s murder which his defense attorney claimed, during his trial, could not be self-inflicted.
Sheppard was convicted of murder and sentenced to life-in-prison. The case became notorious, and by the late 1950s, it was widely suspected that Cuyahoga County court had convicted an innocent man, who was imprisoned for life.
In 1966, the U.S. Supreme Court upheld a federal district court decision on a writ of habeas corpus that had ordered that the State of Ohio to either release Sheppard or grant him a new trial. It is important to understand that Sheppard’s conviction was not overturned on the basis that he was innocent, which was irrelevant, but on the fact that there had been a great deal of negative, pre-trial publicity attacking Sheppard in the press that likely had led to his prosecution.
The High Court noted that the media campaign before and during Sheppard’s arraignment and trail created a “carnival” atmosphere that influenced the trial. It also cited the fact that the judge had failed to sequester the jury or insulate it from this ongoing media campaign against Sheppard. Furthermore, it cited the fact that the judge, on the first day of the trial, had said, “Well, he’s guilty as hell. There’s no question about it.”
The media-created “circus” atmosphere had poisoned his chances for a fair trial. The trial judge’s behavior and his failure to counter the effects of the anti-Sheppard media campaign violated his due process rights. The Supreme Court ruling effectively vacated his sentence, and granted a writ of habeas corpus that gave Sheppard his his taste of freedom in a dozen years. The state of Ohio improbably re-tried Sheppard for murder.
Sam Sheppard’s attorney, F. Lee Bailey, told the press during the second trial that he was going to have Sheppard take the stand in his own behalf. (Sheppard had testified at his first trial.) Bailey had learned that the Ohio prosecutors planned to use a jail-house informant as a rebuttal witness, after Sheppard took the stand. The informant would claim that the imprisoned Sheppard had confessed to him that he had murdered his wife.
Bailey did not let Sheppard testify, with the consequence that the Ohio prosecutors could not put the jail-house informant on the stand. While some saw this as a brilliant move on Bailey’s part, the fact was, Bailey revealed after Sheppard’s premature death in 1970, the wrongfully convicted doctor was in no shape, psychologically, to testify in court. Twelve years behind bars for a crime he did not commit had devastated him.
Within four years after being declared innocent at his second trial, Sam Sheppard was dead of liver failure due to acute alcoholism. He was 46 years old. Appearing on the Tonight Show With Johnny Carson soon after winning his freedom at his second trial, Sheppard had confessed to Carson during a commercial break that if he had been convicted again, he would have committed suicide.
Freedom?
Donald Eugene Gates was released from the federal prison in Arizona where he was serving his sentence. He was given a ticket to Ohio, where he has family, a set of winter clothes, and $75. Whether he will remain a free man, or will – like Sam Sheppard – be retired, remains to be seen.
A hearing to determine whether Gates should be exonerated is scheduled for December 23rd. At the hearing, prosecutors will examine the DNA testing of the evidence. If Gates is not exonerated, he will have to register as a sex offender – for a crime he did not commit.
Malone’s Legacy
Dr. Frederic Whitehurst first revealed Michael Malone’s malfeasance at the F.B.I. Crime Lab back in the 1990s. Now executive director of the Forensic Justice Project, he provided relevant information about Malone’s conduct at the Lab obtained via a Freedom of Information Act (FOIA) lawsuit to Gates’ attorney, Sandra Levick.
In the wake of the Office of the Inspector General report on F.B.I. Crime Lab corruption, the Department of Justice set up the Brady Task force to investigate all of the cases Malone and the other 13 lab examiners criticized in the OIG report. The testimony of Malone and the others resulted in hundreds of convictions, all of them suspect and many surely wrongful, like that of Eugene Gates.
The Brady Task force was terminated in 2002. No report was ever issued, and Congress was never informed of its findings of the Brady Task force. Apparently, in the wake of the 9/11 terrorist attacks on America, the F.B.I. was given a “pass” by the George W. Bush Administration and a Republican-controlled Congress, despite the fact that the incompetence and criminality revealed by whistleblowers like Whitehurst and former F.B.I. translator Sibel Edmonds show that such behavior actually undermines national security.
Ironically, after he retired under threat of disciplinary action that never came, Malone continued his relationship with the Bureau. As an F.B.I. contractor, Malone conducts security clearance background checks. Clearly, the Bureau intended to reward him for his falsification of evidence and perjury.
The message the F.B.I.’s continued employment of Malone sends to other wrong-doers in the Bureau and the national security establishment is unmistakable. It also sends a warning to those whistleblowers, like Sibel Edmonds, to think before they reveal corruption. The safety of the United States suffers as a result.
The Future
Though has been known for over a decade that hundreds of convictions obtained by prosecutors depending on the evidence of Michael Malone and the other 13 suspect F.B.I. Crime Lab employees have been tainted, those convictions have been allowed to stand. The federal government has not reviewed them, a situation highlighted by Judge Ugast’s remarks from the bench when freeing Eugene Gates.
The National Whistleblower Center has filed a FOIA seat to obtain the Brady Task force records, which come dribbling in on a monthly basis. Dr. Whitehurst has long contended that Malone manufactured evidence and that all of the cases in which he was involved in must be considered suspect. However, until the Gates case, nothing was done to uncover the truth in those cases.
Judge Ugast’s order that all cases in the District of Columbia involving Malone should be reexamined may be the first step towards obtaining justice for innocent individuals wrongfully convicted by manufactured evidence and perjured testimony provided by F.B.I. Crime Lab employees.
@2009, 2014 by Jon C. Hopwood. Reprinted with permission of the author.
Sources:
Associated Press: “DNA testing clears man who served 28 years”
Washington Examiner: “Man freed after 28 years in prison by DNA testing”
Washington Post: “DNA sets free D.C. man imprisoned in 1981 student slaying”